Citation Nr: 1602356 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 09-14 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for left shoulder disabiltity, to include arthritis. 2. Entitlement to service connection for right shoulder disabiltity, to include arthritis. 3. Entitlement to service connection for left wrist disabiltity, to include arthritis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to March 1970. He had combat service in the Republic of Vietnam and was awarded the Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2011, August 2012, and May 2013, this case was remanded for additional development. As explained below, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND VA's duty to assist includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C.A § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). VA is not required to provide a medical examination in all cases; however, "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, ... he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet .App. 46, 51-52 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R. § 19.9(a) to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for proper appellate decision"); see also Green, 1 Vet.App. at 124 (holding that remand is appropriate where the Board relied on an inadequate examination report); 38 C.F.R. § 4.2 (2015). In this case, the record shows that the Board remanded the case in May 2013 for a VA medical opinion on whether arthritis of the shoulders and left wrist was as likely as not related service. The Board instructed that the examiner should address the Veteran's credible history of activities and injuries in service, to include his "travelling in and jumping on-and-off of armored personnel carriers and his treatment by medics in the field while serving in combat in Vietnam." Following VA examination in October 2013, the examiner (nurse practitioner) opined that the Veteran's arthritis of the shoulders and left wrist was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness because there was "no documentation in military record that this veteran was seen" for pain or trauma of the right shoulder, left shoulder, or left wrist. The examiner attributed the current problems to the aging process. The Board finds that the October 2013 VA medical opinion is inadequate. The examiner inappropriately relies exclusively on the absence of in-service evidence of documented complaints or findings to support the conclusion, and essentially dismisses the Veteran's reported history without any explanation. The Veteran is competent to report his experiences, injuries, and treatment. See Layno v. Brown, 6 Vet. App. 465 (1994). While the examiner was not required to accept the Veteran's theory that his in-service experiences caused his current disorder, the examiner was required to fully explain why she disagreed with the Veteran's theories, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that supported her negative medical opinion or conclusion(s). Essentially, a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet.App. 102, 124-25. "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). It is noted that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The October 2013 VA medical opinion should be returne for an addendum on the etiology of those right shoulder, left shoulder, and left wrist disabilities shown during this appeal, to include arthritis. All pertinent evidence in the VA electronic claims file should be reviewed, and this review should be noted in the report; a copy of this remand should be made available so that the physician understands why this case requires a new medical opinion. The report should reflect an opinion on whether it is as likely as not (50 percent probability or more) that the Veteran's disorders, to include arthritis (degenerative joint disease), of the right shoulder, left shoulder, or left wrist are attributable to disease or injury incurred in service, to include Veteran's credible history of activities and injuries in service (i.e. his travelling in and jumping on-and-off of armored personnel carriers and his treatment by medics in the field while serving in combat in Vietnam). A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Then, the AOJ should review the medical opinion and rationale to ensure that an adequate supporting rationale is provided, or return for such. 3. Then, after ensuring any other necessary development has been completed, the AOJ should readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).